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Rajasthan High Court
Shinghal, J.
Manraj - Appellant
Versus
Rameshwar - Respondents
S.B. Civil Second Appeal No. 207 of 1962
Decided On : January 23, 1969
No injury or injustice will be caused to the defendants by allowing the amendment. They themselves knew whether Manraj was in possession of the suit property to the complete exclusion of the plaintiff, but they did not care to take the plea that he should have prayed for joint possession with Manraj. On the other hand they took the plea that Smt. Bhani was in exclusive possession, and that plea has been found to be false. The defendants have now turned round and taken shelter under the belated argument that the plaintiff should have asked for joint possession with Manraj. So they are largely to blame if there was no issue on the point and it was not put to trial. It is true that the plaintiff should himself have realised that he was out of possession and prayed for joint possession with Manraj But I am inclined to take a lenient view of this lapse because, the plaintiff remained under the impression that if he succeeded in securing a declaration that he was the adopted son of Manraj, the peculiar nature of the Hindu coparcenary property would make him a joint owner with him from the date of the declaration because there is community of interest and unity of possession in the case of all the members of a joint Hindu family. This was no doubt not a sufficient reason for not asking the relief of joint possession, but it is certainly an extenuating circumstance which mitigates the mistake. To rectify it the plaintiff has now applied for an amendment in order to seek the relief of joint possession and the amendment cannot be said to work any injustice to the defendants because they all along knew that the question of the plaintiffs dispossession at their instance was a live point of controversy and they were vigilant enough to lead whatever evidence they could in respect of it and also took care to cross-examine the plaintiff and were able to establish from his own admission that he was out of possession from before the suit. This is not therefore a case in which any injustice will be done to the defendants if the amendment is allowed. And it cannot be disputed that it is necessary for the purpose of rectifying a technical defect in framing the prayer in the suit so that justice may be done in the case. The amendment, in the present case, relates to the rectification of the relief clause of the plaint, and that too in respect of a consequential relief. By the very nature of the amendment, it cannot be said that the other party will not be placed in the same position as if the relief had been originally correct. In all these facts and circumstances, I am inclined to allow the amendment prayed for. (Paras 38)
2. Plaintiff Rameshwar raised the suit on November 30, 1956, with allegation that after the death of his wife and son, Hemraj took him in adoption on Phalgun Sud 2, S. 2001, executed a document (Ex. 1) to that effect and kept him as his son. He claimed that he lived jointly with Manraj as his adopted son and helped him in cultivation. According to the plaintiff, Binja had no son and so his widow Smt. Amri kept her daughter Ram Kanwari with her and after her death Ram Kanwari became the owner of her property. Manraj was the "karta" of his family but, according to the plaintiff, he colluded with the other defendants in order to deprive him of the property, and executed a registered gift deed (Ex. 20) of the property in favour of his daughter Smt. Bhani on October 19, 1956. He told the plaintiff that he did not want to keep him in adoption. The plaintiff therefore felt aggrieved because, according to the averment in the plaint, the property was the ancestral property of his grand-mother Ram Kanwari and her husband Hema and could not be gifted. As the gift deed cast a cloud on his right to the property, the plaintiff raised the suit for a declaration that he was the adopted son of Manraj defendant No. 1. He also prayed for the cancellation of the gift deed as it was void and inoperative against him.
3. Separate written statements were filed by Manraj and Ram Kanwari. Manraj denied the adoption of the plaintiff and pleaded that he had made the gift in favour of his daughter Smt. Bhani because she used to serve him well and the property exclusively belonged to him and had nothing to do with the plaintiff. He pleaded that as Smt. Bhani (defendant No. 2) was put in possession of the property on the date of the registration of the gift-deed and was in possession ever since, the suit for a mere declaration was not maintainable. Further, he pleaded that he was the natural son of Kheta and had gone in adoption to his maternal grand-father Binja when he was a child and was therefore the owner in possession of Binjas property. In this connection he stated that after the death of his father Kheta, his mother Smt. Ram Kanwari went in "nata" to Hema and that Magna, Chuna and Hanuman were born thereafter. It was there-fore pleaded that there were two separate families one of defendant Manraj and the other of Magna, Chuna and Hanuman. This plea was taken for the purpose of showing that the plaintiff, as the son of Magna, had no claim over the property of Binja because Manraj had been given in adoption by his father Kheta to Binja and became the only owner of the suit property.
4. In her written statement Smt. Ram Kanwari accepted some of the pleas of the plaintiff, including the plea that he was the adopted son of Manraj, but pleaded that the land was in her possession and that she had allowed the Khatauni" to stand in the name of Manraj because he was the eldest son and she was not in a position to undertake the cultivation. She supported the plaintiffs contention that Manraj had no right to make a gift of the property.
5. It may be stated that, at one stage, a joint written statement was filed by defendants Manraj and Smt. Bhani before the amendment of the plaint, but it is not necessary to refer to it because the learned counsel are in agreement that n
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